California Criminal Jury Instructions (CALCRIM) (2017)

3550. Pre-Deliberation Instructions

Download PDF
D. CONCLUDING INSTRUCTION ON SUBMISSION TO
JURY
3550.Pre-Deliberation Instructions
When you go to the jury room, the first thing you should do is choose a
foreperson. The foreperson should see to it that your discussions are
carried on in an organized way and that everyone has a fair chance to
be heard.
It is your duty to talk with one another and to deliberate in the jury
room. You should try to agree on a verdict if you can. Each of you must
decide the case for yourself, but only after you have discussed the
evidence with the other jurors. Do not hesitate to change your mind if
you become convinced that you are wrong. But do not change your
mind just because other jurors disagree with you.
Keep an open mind and openly exchange your thoughts and ideas about
this case. Stating your opinions too strongly at the beginning or
immediately announcing how you plan to vote may interfere with an
open discussion. Please treat one another courteously. Your role is to be
an impartial judge of the facts, not to act as an advocate for one side or
the other.
As I told you at the beginning of the trial, do not talk about the case or
about any of the people or any subject involved in it with anyone,
including, but not limited to, your spouse or other family, or friends,
spiritual leaders or advisors, or therapists. You must discuss the case
only in the jury room and only when all jurors are present. Do not
discuss your deliberations with anyone. Do not communicate using:
<insert currently popular social media> during your
deliberations.
It is very important that you not use the Internet (, a dictionary/[, or
<insert other relevant source of information>]) in any way in
connection with this case during your deliberations.
[During the trial, several items were received into evidence as exhibits.
You may examine whatever exhibits you think will help you in your
deliberations. (These exhibits will be sent into the jury room with you
when you begin to deliberate./ If you wish to see any exhibits, please
request them in writing.)]
If you need to communicate with me while you are deliberating, send a
note through the bailiff, signed by the foreperson or by one or more
members of the jury. To have a complete record of this trial, it is
1029
0035
important that you not communicate with me except by a written note.
If you have questions, I will talk with the attorneys before I answer so it
may take some time. You should continue your deliberations while you
wait for my answer. I will answer any questions in writing or orally
here in open court.
Do not reveal to me or anyone else how the vote stands on the (question
of guilt/[or] issues in this case) unless I ask you to do so.
Your verdict [on each count and any special findings] must be
unanimous. This means that, to return a verdict, all of you must agree
to it. [Do not reach a decision by the flip of a coin or by any similar
act.]
It is not my role to tell you what your verdict should be. [Do not take
anything I said or did during the trial as an indication of what I think
about the facts, the witnesses, or what your verdict should be.]
You must reach your verdict without any consideration of punishment.
You will be given [a] verdict form[s]. As soon as all jurors have agreed
on a verdict, the foreperson must date and sign the appropriate verdict
form[s] and notify the bailiff. [If you are able to reach a unanimous
decision on only one or only some of the (charges/ [or] defendants), fill
in (that/those) verdict form[s] only, and notify the bailiff.] Return any
unsigned verdict form.
New January 2006; Revised April 2008, October 2010, April 2011
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that the jury’s verdict must be
unanimous. Although there is no sua sponte duty to instruct on the other topics
relating to deliberations, there is authority approving such instructions. (See People
v. Gainer (1977) 19 Cal.3d 835, 856 [139 Cal.Rptr. 861, 566 P.2d 997]; People v.
Selby (1926) 198 Cal. 426, 439 [245 P. 426]; People v. Hunt (1915) 26 Cal.App.
514, 517 [147 P. 476].)
If the court automatically sends exhibits into the jury room, give the bracketed
sentence that begins with “These exhibits will be sent into the jury room.” If not,
give the bracketed phrase that begins with “You may examine whatever exhibits
you think.”
Give the bracketed sentence that begins with “Do not take anything I said or did
during the trial” unless the court will be commenting on the evidence. (See Pen.
Code, §§ 1127, 1093(f).)
AUTHORITY
• Exhibits. Pen. Code, § 1137.
CALCRIM No. 3550 POST-TRIAL: CONCLUDING
1030
0036
• Questions. Pen. Code, § 1138.
• Verdict Forms. Pen. Code, § 1140.
• Unanimous Verdict. Cal. Const., art. I, § 16; People v. Howard (1930) 211
Cal. 322, 325 [295 P. 333]; People v. Kelso (1945) 25 Cal.2d 848, 853–854
[155 P.2d 819]; People v. Collins (1976) 17 Cal.3d 687, 692 [131 Cal.Rptr. 782,
552 P.2d 742].
• Duty to Deliberate. People v. Gainer (1977) 19 Cal.3d 835, 856 [139 Cal.Rptr.
861, 566 P.2d 997].
• Judge’s Conduct as Indication of Verdict. People v. Hunt (1915) 26 Cal.App.
514, 517 [147 P. 476].
• Keep an Open Mind. People v. Selby (1926) 198 Cal. 426, 439 [245 P. 426].
• Do Not Consider Punishment. People v. Nichols (1997) 54 Cal.App.4th 21, 24
[62 Cal.Rptr.2d 433].
• Hung Jury. People v. Gainer (1977) 19 Cal.3d 835, 850–852 [139 Cal.Rptr.
861, 566 P.2d 997]; People v. Moore (2002) 96 Cal.App.4th 1105, 1118–1121
[117 Cal.Rptr.2d 715].
• This Instruction Upheld. People v. Santiago (2010) 178 Cal.App.4th 1471,
1475–1476 [101 Cal.Rptr.3d 257].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial,
§§ 643–644.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02, 85.03[1], 85.05[1] (Matthew Bender).
RELATED ISSUES
Admonition Not to Discuss Case with Anyone
In People v. Danks (2004) 32 Cal.4th 269, 298–300 [8 Cal.Rptr.3d 767, 82 P.3d
1249], a capital case, two jurors violated the court’s admonition not to discuss the
case with anyone by consulting with their pastors regarding the death penalty. The
Supreme Court stated:
It is troubling that during deliberations not one but two jurors had
conversations with their pastors that ultimately addressed the issue being
resolved at the penalty phase in this case. Because jurors instructed not to
speak to anyone about the case except a fellow juror during deliberations . . . .
may assume such an instruction does not apply to confidential relationships, we
recommend the jury be expressly instructed that they may not speak to anyone
about the case, except a fellow juror during deliberations, and that this
includes, but is not limited to, spouses, spiritual leaders or advisers, or
therapists. Moreover, the jury should also be instructed that if anyone, other
than a fellow juror during deliberations, tells a juror his or her view of the
evidence in the case, the juror should report that conversation immediately to
the court.
POST-TRIAL: CONCLUDING CALCRIM No. 3550
1031
0037
(Id. at p. 306, fn. 11.)
The court may, at its discretion, add the suggested language to the fourth paragraph
of this instruction.
CALCRIM No. 3550 POST-TRIAL: CONCLUDING
1032
0038